Guardians and Conservators

The traditional distinction between guardians and conservators is as follows:

Guardians - A guardianship is a legal right given to
a person to be responsible for the food, health care, housing, and other
necessities of a person deemed fully or partially incapable of providing
these necessities for himself or herself.

Conservators - A conservatorship is a legal right given to a person to be responsible for the assets and
finances of a person deemed fully or partially incapable of providing these
necessities for himself or herself.

In some jurisdictions, a guardianship may be referred to as a "conservatorship
of the person" or by some similar name, or there may be a type of guardianship
position which subsumes many of the tasks of the conservator.

This article
assumes a the traditional division between legal guardianship and conservatorship.
For more information on conservatorship,
please see this accompanying article.

Under most circumstances where a person requires a legal guardian, the person's
incapacity will also impair his or her ability to manage financial matters.
Thus, petitions for guardianship are often brought at the same time as petitions
for conservatorship, and all associated proceedings are combined. To avoid
having to go through

When Is A Guardian Required for an Adult?

It may be necessary to petition a court to appoint a legal guardian for persons:

Who have a physical or mental problem that prevents them from taking care
of their own basic needs;

Who as a result are in danger of substantial harm; and

Who have no person already legally authorized to assume responsibility
for them.

Under some circumstances, it may be necessary for a court to appoint an emergency
guardian, who can act on your behalf during a crisis (such as immediately
following a car accident) until you regain your ability to make your own decisions.

How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction.
The typical steps are as follows:

The person seeking the appointment of a guardian files a petition with
the probate court for the jurisdiction where the allegedly legally incapacitated
person resides. This petitioner is often a relative, an administrator for
a nursing home or health care facility, or other interested person. A petition
is ordinarily accompanied by medical affidavits or other sworn statements
which evidence the person's incapacity, and either identifies the person
or persons who desire to be named guardian or requests the appointment of
a public guardian.

The court arranges for any necessary evaluation of the allegedly legally
incapacitated person. Often, this will involve the appointment of a "guardian
ad litem", a person who is appointed to provide an independent report
to the court on behalf of the allegedly legally incapacitated person. If
appointed, the guardian ad litem will meet with the allegedly incapacitated
person, inform that person of his or her legal rights, and report back to
the court on the person's wishes. The guardian ad litem may also speak to
the petitioner, to health care providers, and to other interested individuals
in order to provide the court with full information about the allegedly
incapacitated person's condition and prognosis. Depending upon state law,
the court may appoint a doctor or professional to examine the allegedly
incapacitated person.

If the allegedly incapacitated person contests the appointment of a guardian,
a trial is scheduled during which sworn testimony will be given, and at
the conclusion of which the judge will decide if the petitioner met the
requisite burden of proof for the appointment of a guardian. The allegedly
incapacitated person is ordinarily entitled to appointed counsel, if unable
to afford a private attorney.

If the allegedly incapacitated person consents to the petition, or is
unable to respond to inquiries due to disability, the court will hold a
hearing at which witnesses will provide sworn testimony to support the allegations
in the petition. If the evidentiary basis is deemed sufficient, the guardian
will be appointed.

If a guardian is appointed, the judge will issue the guardian legal documents
(often called "letters of authority") permitting the guardian
to act on behalf of the legally incapacitated person.

What Are a Guardian's Duties?

The guardian makes decisions about how the person lives, including their
residence, health care, food, and social activity. The guardian is supposed
to consider the wishes of the incapacitated person, as well as their previously
established valued, when making these living decisions. The guardian is intended
to monitor the legally incapacitated person, to make sure that the person
lives in the most appropriate, least restrictive environment possible, with
appropriate food, clothing, social opportunities, and medical care.

A guardian may be required to post a bond, unless the requirement is waived
by the court. In most jurisdictions where bond is required, waivers are routine.

The Purpose of Court Supervision

The court supervises the guardian's choices on behalf of the ward. After
the initial appointment of a guardian, an initial review is usually scheduled,
followed by annual reports by the guardian to the court. The purpose of this
supervision is to ensure that the legally incapacitated person is in fact
benefiting from the most appropriate, least restrictive living environment
possible, with appropriate food, clothing, social opportunities, and medical
care.

How Can a Guardianship Be Ended?

A guardianship can be terminated by the court which created it. This ordinarily
happens if the legally incapacitated person recovers from the incapacity that
necessitated the guardianship. A particular guardian's role may be terminated
by the court or by resignation, in which case the court will ordinarily appoint
a successor guardian to take over management of the legally incapacitated
person's affairs. A guardianship also ends upon the death of the legally incapacitated
person.

What About Co-Guardians?

Sometimes, relatives of a legaly incapacitated person will request that they
be made co-guardians for that person. If this is done, depending upon the
laws of the jurisdiction and the terms of the appointment, it may be necessary
for both co-guardians to approve any decision made on behalf of the legally
incapacitated person. This can create needless delay in the administration
of emergency care, and can create difficulty in establishing authority for
even minor decisions. Thus, it is usually advisable not to have co-guardians,
but instead to name a single guardian, perhaps with the other relative named
as a successor guardian.

Avoiding Guardianship

It is possible to avoid the necessity of a guardianship through estate
planning. A good estate plan will include a medical
power of attorney which will enable a trusted individual to make health
care decisions for you in the event of incapacity, and a general durable
power of attorney to permit a trusted individual to manage your personal
affairs. To a considerable extent, those documents can specify how you wish
to live, and how you wish to be treated, in the event of disability - whereas
a court or guardian may make decisions with which you would disagree. In most
cases, when these documents have been executed in accord with the laws of
your state, it will not be necessary for your loved ones to seek the appointment
of a guardian or conservator should something
happen to you - something that can be cumbersome and emotionally taxing at
an already difficult time.